ESA Policy News: March 26

Here are some highlights from the latest Policy News. See the full edition here.

AIR POLLUTION: CARPER PLANS FOR APRIL MARK-UP OF 3-POLLUTANT BILL–Senator Tom Carper (D-DE) said this week that he expects a mid-April markup of legislation to curb power plant pollution in the full Environment and Public Works (EPW) Committee. Carper, who chairs the Clean Air Subcommittee, and Lamar Alexander (R-TN) unveiled a bill (S. 2995) last month that seeks steep cuts in electric utilities’ emissions. The measure aims to cut power plants’ soot-forming sulfur dioxide (SO2) by 80 percent by 2018, smog-forming nitrogen dioxide (NOx) by 50 percent by 2015 and mercury by 90 percent by 2015.

Several Republicans on the EPW Committee signaled last month that while they support the goals of the bill, they had concerns about some of the details. EPW Committee ranking member James Inhofe (R-OK) said last month that the bill imposes fairly strict emissions reductions over a short time frame, while Sen. George Voinovich (R-OH) cautioned that the reductions would require fuel switching and significant increases in electric rates.

Carper has said he would like to add his three-pollutant measure to comprehensive climate and energy legislation pending in the Senate, but he and Alexander stressed the importance of moving forward independently on a multi-pollutant bill.

INVASIVE SPECIES: SUPREME COURT AGAIN REJECTS INJUNCTION IN ASIAN CARP CASE–The Supreme Court has for the second time denied a request to temporarily close Chicago-area waterways as the justices weigh whether to wade into the interstate lawsuit over invasive Asian carp.

Michigan’s request, submitted in February 2010 after new test results detected Asian carp in Lake Michigan for the first time, was a last-ditch effort to force the closure of the locks after the Obama administration declined to take that action. In an Asian carp response framework released last month, the administration pledged to spend $78.5 million to prevent the fish from entering the Great Lakes but did not commit to lock closures, which have been fiercely opposed by Illinois’ shipping industry.

Supporters of the lock closures say the structures would provide the most effective additional protection against the short-term spread of Asian Carp, which could threaten the fishing and recreation industries in the Great Lakes if they manage to establish a permanent population.

The U.S. Army Corps of Engineers is studying short-term options for the Chicago-area waterways and will determine by April 30 whether it will close the locks on a specific timetable or not close them at all.

WATER: GEORIGA TRIES TO SWAY CONGRESS IN TRI-STATE WATER STRIFE–As Georgia wages a legal war against Florida and Alabama over its access to a federal reservoir, its politicians are trying to spur a national water-rights debate by spotlighting a list of 40 Army Corps of Engineers’ projects being tapped by utilities in 14 states without direct approval from Washington.

As it stands, authority to tap federal reservoirs comes largely from the Water Supply Act of 1958. The law allows the Army Corps to release water for purposes not originally authorized as long as the original uses of the project — hydropower or navigation, for example — are not “seriously” affected. But Congress has never weighed in on how to set that standard for seriousness.

When U.S. District Court Judge Paul Magnuson last October gave Georgia three years to win congressional approval for its use of Lake Lanier, which provides water to more than 3 million Atlanta residents, he warned that the Army Corps could face future disputes over its discretionary reallocations of supply.

“The problems faced” by the states battling over Lanier, Magnuson wrote, “will continue to be repeated throughout this country as the population grows and more undeveloped land is developed.”

The Army Corps drew up its list of 40 reservoirs with questionable federal authorization at the request of Georgia’s U.S. Senate delegation, Republicans Saxby Chambliss and Johnny Isakson, in hopes of spurring congressional debate on such arrangements. But several officials whose utilities draw water from reservoirs operating under the 1958 law claim they have valid deals with the Army Corps. Army Corps spokesman Eugene Pawlik echoed those assurances in a statement.

“Local water authorities which have purchased storage in Corps of Engineers reservoirs may continue to withdraw water in accordance with the terms of their water storage agreements,” Pawlik said via e-mail. “No additional federal permission is needed.”

But when told that other states considered their discretionary water agreements with the Army Corps inviolable, a spokesman for Georgia Gov. Sonny Perdue (R) replied, “So did we.”

Perdue aide Bert Brantley described his state as “a cautionary tale that just having a contract with the corps doesn’t mean a judge is going to take that as authorization.” Now that the public knows how many areas lack explicit federal approval for their water supply, Brantley said, the governor hopes the uncertainty will no longer be seen as “a Georgia problem.”

Perdue’s office is not alone in predicting more conflict over rights to federal reservoirs. George Sherk, a professor at the Colorado School of Mines and former Department of Justice water-law attorney, said “We’ve got multiple federal statutes, multiple agency mandates, and no way to reconcile them. The way to reconcile them is to take them to Congress, but I’m not sure Congress could reconcile to go to lunch right now.”

Water-law professor Robert Abrams of Florida A&M University agreed that lawmakers lack the political will to enact broader reform of the process.

Still, Abrams said, “everything’s going to become more controversial, rather than less, because of climate-change effects. It’s not necessarily that we’re going to have less rain, but the timing … and concentration is going to be different. The corps is going to be whipsawed.”